Temporal Limits on Lawmaking Powers

Author:Julian N. Eule

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A republic derives its power from the people, and as JAMES MADISON declared in THE FEDERALIST #39 and #53, the persons elected to administer it hold office only "for a limited period" and enjoy no license to extend the length of their terms. Although in contemporary America such a concept seems almost beyond dispute, Madison's pronouncement marked a radical departure from English tradition.

By the Triennial Act of 1694 the English Parliament limited the term of Parliament to three years. In 1716, however, the members of Parliament, in their final year of service and concerned that elections might be perilous to the ruling party, repealed the Triennial Act. In its place they enacted the Septennial Act, by which the legal duration of the sitting Parliament was immediately extended to seven years. The powers of the incumbent members of the House of Commons were thus prolonged by four years. Although the English might have regarded this exercise of legislative authority as contemptuous or extravagant, they did not consider it ULTRA VIRES in a system constructed on the concept of parliamentary supremacy.

The United States Constitution rejects the cornerstone of legislative supremacy. The recognition of the citizenry as an external force from which all power originates severed the umbilical connection with English tradition. The Preamble's opening phrase, "We the people," is more than flashy prose. The legislators were transformed from the

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masters of the electorate to their servants. The people are the source of all power; the legislators are merely designated agents.

There is, as ALEXANDER HAMILTON pronounced in The Federalist #78, "no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void." Agency may be limited in duration as well as scope. The Framers devoted considerable attention to the appropriate length of a representative's term of office. The decision to limit the terms of the members of the HOUSE OF REPRESENTATIVES to two years was prompted by a recognition that in order to ensure liberty, government must have an immediate dependence on, and intimate sympathy with, the people. Frequent elections, warned Madison in The Federalist #53, are "the only policy by which this dependence and sympathy can be effectively secured." Although the longer six-year term for senators was a concession to the need for some continuity and stability in government, the expiration of the terms of one-third of the body every two years provides a reminder of accountability (the dependence factor)...

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